No same-sex marriage in Idaho until appeal decided, says court

Maria May-Chang, right, wipes away a tear after having a piece of cake with her wife Jody May-Chang, left, and their son Cody at the Ada County Courthouse in Boise, Idaho, on Friday, May 16, 2014.

BOISE, Idaho — No same-sex marriages will be allowed or recognized in Idaho until an appeal is decided, a federal appeals court ruled Tuesday.

The 9th U.S. Circuit Court of Appeals granted request for a stay from Gov. C.L. “Butch” Otter and Idaho Attorney General Lawrence Wasden. The court also said it would put the appeal on a fast track, hearing arguments from all sides in September.

The decision means that despite a recent ruling overturning Idaho’s gay marriage ban, same-sex couples can’t get married or have their marriages recognized until the 9th Circuit or U.S. Supreme Court decides whether to let the ruling stand.

U.S. District Magistrate Judge Candy Dale overturned Idaho’s gay marriage ban May 13, saying the law unconstitutionally denied gay and lesbian residents their fundamental right to marry.

Otter and Idaho Attorney General Lawrence Wasden both immediately announced plans to challenge Dale’s decision, asking the appellate court to put the ruling on hold while their appeals move forward.

Though the three-judge appellate court panel unanimously agreed to put that ruling on hold, Circuit Judge Hurwitz wrote in the order that he was only doing so because a recent U.S. Supreme Court ruling in another case virtually instructed courts of appeals to grant such stays.

Hurwitz said the U.S. Supreme Court would almost certainly resolve the merits of the appeal, and though he didn’t want to predict the high court’s decision, he thought the 9th Circuit was likely to reject the appeal.

“… it is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail in their defense of a measure that denies the individual appellees the right to marry because of their sexual orientation,” Hurwitz wrote.

But opposition remains stiff in many places. Critics note most states still do not allow gay marriage and that in most of the states that do, it was the work of courts or legislatures, not the will of the people.

In Idaho, Dale’s ruling came after four same-sex couples sued Otter and Ada County Clerk Chris Rich. Two of the couples were legally married in other states, but their marriages are not recognized by Idaho. The other two applied for marriage licenses in Boise but were denied.

The couples contend Idaho’s law is discriminating and a violation of due process.

Lori and Sharene Watsen were one of the couples who brought the lawsuit.

“While Sharene and I are disappointed that the state won’t have to respect our marriage right away, we’re happy that the case is being fast-tracked,” Lori Watsen said. “We look forward to the day our home state treats our marriage equally and we have the same legal protections as other married couples in Idaho.”

Idaho Attorney General Lawrence Wasden said he was also pleased with the stay.

“I think it’s critical to take an orderly approach to this case and avoid the confusion that has occurred in other states. Now I can focus fully on my responsibility and obligation of defending the choice Idaho voters made to define marriage eight years ago,” Wasden said.